Lawyers distance themselves from NSW Bar Association position on proposed consent laws

By Melissa Coade

June 7, 2021

NSW supreme court
The NSW government is dragging the chain on two major law reforms. (Image: Adobe/Rose)

A list of 22 barristers in NSW (most of whom are either silks or Queens Counsel) has been published by former Solicitor-General of Australia Justin Gleeson SC, announcing support for proposed sexual assault reforms in the state — contrary to the position adopted by the Bar Association. 

NSW Bar Association president Michael McHugh expressed concerns about introducing an affirmative consent model in NSW last month. But a splinter group of heavyweight members, senior advocates with either the SC or QC post nominal in recognition of their expertise, have gone on record to say they disagree.

A short media statement issued on behalf of the 22 lawyers said that the reality was, like any other member of the community, barristers were likely to have a range of views on a controversial topic. For their part, the splinter group said they were happy to endorse NSW Attorney General Mark Speakman’s proposed reforms for sexual assault and rape laws.

“Recent years have confirmed that the current balance struck by sexual assault laws is not satisfactory. Something needs to be done. While the rights of the accused should not be lost, the interests of victims need better protection,” the group statement said

“We, like many barristers, believe the A-G’s reforms are sound in principle. We urge all interest groups to work with the NSW government to fine tune the points of detail of the proposal rather than resist a change that is likely ultimately going to bring about better outcomes for the community as a whole.”

McHugh’s main reservations about the proposed affirmative consent model (which shifts the legal standard on consent from from a ‘no means no’ to ‘yes means yes’) was that it could interpret even the smallest gesture, where consent was not an issue, to require an affirmative answer.

He also underscored that the affirmative consent model was not recommended by the NSW Law Reform Commission in a November 2020 report it published on sexual consent laws.

“The New South Wales Bar Association calls upon the government to reconsider the implications of this ill-considered proposal, which goes beyond the model recommended by the New South Wales Law Reform Commission in its recent report,” McHugh said.

The bloc of NSW barristers who have taken a different view to their member organisation say they disagree with the assertion that the reforms are ‘fundamentally misguided and likely to criminal many respectful consensual sexual behaviours’. 

The barristers said they were in favour of introducing the proposed law and linking it with a broader community education program around establishing clear consent during sex and other intimate encounters.

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